Note of CHAPTER 2: TYPES OF LAW from exam perspective. (cursory note).
CHAPTER 2: TYPES OF LAW
SUBSTANTIVE & PROCEDURAL LAW
Substantive Law
In general sense, substantive law is that area of law which focuses on creating, defining and regulating people's rights and responsibilities as they are owned to each other and to the state, which are not matters purely of practice and procedures.
The body of substantive law includes things like defining crimes and prescribing appropriate punishments or providing sentencing guideline, which can be used when determining how someone should be sentenced, along with discussions about legal relationship between people as well as entities.
Examples:-National Civil Code 2074, National Criminal Code 2074, Nepalese Contract Act 2050, etc.
Procedural Law
Procedural law prescribes the procedures and methods for enforcing rights and duties and for obtaining legal remedy through a lawsuit. It ascertains the way of implementation of substantive law and process of administration law and process of administration of justice through civil and criminal proceedings. It deals with the matter such as jurisdiction of the courts, the way in which the hearing or the trial is to be conducted, judgment of the courts and the execution of decrees, order and sentences passed by the court.
Examples: - National Civil procedural Code 2074, National Criminal Procedural Code 2074, Right to Constitutional Remedy in Article 46 of constitution of Nepal 2072, etc.
Differences
| Basis | Substantive Law | Procedural law |
| Definition | The laws which is concerned with creating, defining and regulating the rights and duties/obligations of the individual is called substantive law. | The law which prescribes the procedures and methods for enforcing rights and duties/obligations for obtaining legal remedy is called procedural law. |
| Place of applications | This relates the matter outside the courts like fundamental rights and liabilities of the members of society. | This regulates affairs inside the courts like appealing, presenting evidence, representation of counsel, pleading, reviewing etc. |
| Nature | Defines right and duty. (Substance of law) | Determines the remedies. |
| Independent power | independent powers to decide the fate of a case. | No independent power. |
| Context of application | Cannot be applied in non-legal contexts. | Can be applied in non-legal contexts. |
| Concerned with | Fixation of rights and duties of the citizens. | Ways and means for imposing substantive law. |
| According to Salmond | Substantive law is concerned with ends which administration of justice seeks to achieve. | Law of procedure is that branch of law which governs the process of litigation. |
| Governance/Regulation | By act of Parliament | By statutory laws |
| Examples | National Country Civil Code 2074, National country Criminal Code.2074, Indian Penal Code etc. | National Civil Procedural Code 2074, National Criminal Procedural Code 2074, Article 46 of Constitution of Nepal. |
Simply, the two types of law differ in sense that procedural law oversees the litigation process of the case, whereas the substantive law deals with the subject matter and objective of the litigation. In short, procedural law is nothing but an add-on of substantive law.
Note: The restriction must be reasonable from the substantive as well as procedural standpoint. (N.B. Khare vs. State of Punjab, AIR 1960 SC 211)
Civil and Criminal law
Civil law
A body of rules that delineate private rights and remedies and govern disputes between individuals in such areas as contracts, property, and Family law, distinct from criminal or public law.
In case of violation of civil law, civil liabilities arise, and perpetrator should compensate the aggrieved party. In a case of injustice in civil matter, a plaintiff will be awarded compensation, usually financial.
Criminal law:
Criminal law is body of law that relates to crime. Criminal law defines offences and prescribes punishments. Not only it prevents crimes but also punishes the offenders.
In common law tradition, criminal law is part of public law concerning wrongs against the community as a whole. The persons guilty of criminal wrongs are prosecuted and punished by the state. Thus, criminal law deals with crimes against the human body, property, reputation, against the state or against the public rights.
Criminal law is necessary for the maintenance of law, order and maintain peace within the state. (In criminal case, it is the state which initiates proceeding against the wrong doers.)
| Basis | Civil Law | Criminal law |
| Definition | Civil law deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. | Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. |
| Purpose | The purpose of civil law is to deal with the dispute between individual, organization or between the two, in which compensation is awarded to the victim. | The purpose of criminal law is to maintain the stability of the state and society by punishing offenders and deterring them and others from offending |
| Starts with | Filing a petition to the respective court by the aggrieved party. | Firstly, a complaint is lodged with the police who investigate the crime, thereafter a case is filed in the court. |
| Case filed | Private party/Plaintiff | State/Government |
| Outcome | Compensation (financial) for injuries or damages or injunction is given. And the outcome is remedial. | A guilty defendant is subject to custodial (imprisonment) or non-custodial punishment. And the outcome is punishment. |
| Court fees | Required | Not required |
| Examples | Civil law cases include family disputes personal injury cases, contract issue. | Criminal law cases include burglary, theft, arson, criminal damage, murder, fraud, drug dealing etc. |
| Violation of | Individual rights | Criminal code of the state |
Civil law is primarily created to settle disputes and provide compensation to the aggrieved party. On the contrary, the criminal is aimed at preventing undesirable behavior and give punishment the ones, who commit such acts, which are prohibited by the law.
PUBLIC AND PRIVATE LAW
Public law
Public law refers to the law that deals with the issues that concern the general public or state. It relates to individuals’ obligations to the state and the society as a whole.
Usually, this part of the law covers up administrative law, constitutional law, criminal laws and other broader areas of law. Here, the state is not only an arbitrator/mediator, but also one of the concerned parties.
Private law
Private law deals with the issues that cover up the matters related to families, business and small groups and exists to assist citizens in dispute that involve private matters. It thus governs the relation of citizens among themselves. Contract law, family law, property law are some of the specific law areas that comprise this part of the law.
The government does not prosecute in violation of private law rather it imparts justice referring to a case filed by the affected party.
Public International Law
It is the body of legal rules applied between sovereign states and other international personalities, independent organizations, companies. It regulates relationships between states (countries) and/or international organizations. For example, treaties and relationships
The rules are primarily the outcome of international customs, relationship and treaties between two or more countries come under the purview of public international law. Examples: -Law of the Sea, Human rights conventions, international humanitarian law.
It is enforced due to the international pressure and fear of losing diplomatic relations and facing sanctions. It is equally applicable to all the states involved. There is no predetermined court in it.
Private international law
It is the law that regulates the relationship between private parties (either individual or entity) of two states that might be natural or legal. The rules are framed by the state legislature and referred by international personality. It is enforced by concerned state executive and the case can be filed in the state court. The courts are pre-determined in the agreement held between the two parties. Private laws differ from state to state.
It is also known as conflict of law. (Caused due to the variation in laws of different countries.). It is a field of law that deals with conflict of laws between multiple national jurisdictions. For example, if a British citizen commits a theft in Saudi Arabia and is later tried for it in a British court, the principle of private international law determines how the conflict of interests between criminal laws in Britain and Saudi Arabia would be dealt with.
National Public and Private Laws:
National Public Law: includes criminal laws that deals with anti- social/anti-state criminal offences. Some of the offences that may sound like private ones will actually be part of the public law, e.g. Rape cases, Agony etc.
National Private Law: includes relationships between individuals such as the law of contracts or torts, and the law of obligations.
COMMON LAW AND STATUTARY LAW
Common law
Common law which is also known as judicial precedent or judge made law or case law, is that law body of law derived from judicial decision of courts and similar tribunals. Common law defined as law developed on the basis of preceding rulings by judges.
A judge refers to similar cases in the past and uses the judgment rendered then as a basis for deciding the current case. Thus, the judges while presiding over a case are referring to decisions based on previous cases to come to their final decision. In the event of unique circumstances presented in the specific case, the judgment passed by the judge becomes the new law
The origin of the common law is linked to royal power.
Statutory law
Statutory law is the term used to define written laws, usually enacted by legislative body. Statutory laws vary from regulatory or administrative laws than are passed by executive agencies and common law or the law created by prior court decision.
Statutory laws can be passed by various government agencies of a country. Thus, there are laws passed by federal and state governments, ordinances passed by towns and cities all having the power of law. New laws are issued to meet the needs of the citizens, resolution of outstanding issue, and formalization of an existing law.
Hrithik Yadav.
